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

George Brandis (Queensland, Liberal Party) Share this | Link to this | Hansard source

Senator Bishop, the Clerk advises me that that is not a second reading amendment; that is a committee stage amendment, which you appear to be foreshadowing.

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

Indeed, the Clerk is right. I am foreshadowing an amendment to be moved in the committee stage. I will speak to it in due course. I also foreshadow for the minister that I have some questions in the committee stage on the immunity of defence personnel from civil action when travelling to designated sites. That concludes my remarks.

Ruth Webber (WA, Australian Labor Party) Share this | Link to this | Hansard source

On behalf of Senator Ludwig I seek leave to incorporate his remarks.

Leave granted.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to 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.

Marise Payne (NSW, Liberal Party) Share this | Link to 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.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to 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.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

The Greens oppose this legislation. The legislation attempts to override the Constitution in a most brazen fashion. The law of this land comes from the Constitution and is qualified by the Constitution, and section 119 of the Australian Constitution says:

The Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence.

This legislation brazenly sets out to override the caveat that the Commonwealth be restricted in deploying troops against domestic violence by the need for the state government involved to make a request. The brazenness with which this legislation overrides that constitutional check and ascribes to the Prime Minister, or the two other ministers named, the ability to call out the troops to employ them against Australians on Australian soil without the authority of the relevant state government is breathtaking.

I say to every senator who will vote on this matter: read section 119 and indeed section 118 of our Constitution and consider whether your obligation is to defend our Constitution or to enhance the right of this Prime Minister in his arrogance to take unto himself powers which are not there and which are disallowed by the Constitution. Section 118 of the Constitution says:

Full faith and credit shall be given, throughout the Commonwealth to the laws, the public Acts and records and the judicial proceedings of every State.

This legislation rides roughshod over that full faith and credit which shall be given, at least as the Prime Minister is concerned, and effectively abolishes state law and says that, in determining whether or not troops called out against Australians by this or any future Prime Minister have acted lawfully, you will go to the statutes applying to Jervis Bay—not New South Wales, not Western Australia, not South Australia, not Tasmania, not Victoria, not Queensland, not wherever. Australian troops are brought out against Australians in a domestic situation of crisis without the authority of the state, but look to the statutes of Jervis Bay, says this arrogant government in this legislation, and it is quite explicit about it.

If you look at division 4A—Applicable criminal law—51WA(2), it says:

The substantive criminal law of the States and the other Territories, as in force from time to time, does not apply in relation to a criminal act of a member of the Defence Force that is done, or purported to be done, under this Part.

How dare the government give immunity to Defence Force members called out by a Prime Minister, very probably for a political reason, from the laws of the state that apply! Of course, it will be too late to get a ruling from the High Court to prevent what actions are initiated under this legislation by the defence forces at the behest of the Australian Prime Minister against Australian citizens. There will be, no doubt, challenges in the High Court following that event but, waving this piece of Constitution crushing legislation, this or some future Prime Minister can order out the troops to attack Australians in a domestically charged situation in a way that this nation has never seen before.

Let me give you an example: I was in the rainforests of the lower Gordon River in 1982-83 when a peaceful blockade of citizens, against the wishes of the then state and federal governments, was taking place to prevent the building of the Franklin Dam—and we know consequently that the citizens involved there have been vindicated. However, let us go back to that charged situation. It ended in 1,500 good Australian citizens being arrested. Six hundred were taken to prison. None of them was convicted of any criminal offence consequently, but that did not matter. At the height of that charged situation, members of the then conservative government called for the troops to be brought out.

Under this legislation, the Prime Minister—I doubt Malcolm Fraser would have done it but I have no such doubt about the protectiveness of the current Prime Minister—could call out the troops whether or not the Tasmanian government wanted it and employ them against those good Australian citizens who were there defending the national interest as they saw it, peaceably. Because under this legislation you do not have to say there is any violence; all you have to do is make a reasonable assessment that there is a threat of violence—exactly what conservative members of this parliament were doing at the time they called for the troops to be brought out.

Moreover, I can tell you that during that period the police came to me, when I was in prison, and told me that they had information that violence was going to break out and I should come out and call off the blockade. The deputy senior officer in the Tasmania Police approached me on that premise. So the threat of violence was established in the minds of the police authorities. The whole situation fitted into this piece of legislation. Whether or not the Tasmanian government of the day had wanted it, the troops could have and, I believe, may well have been called out in those circumstances.

This is extraordinarily dangerous legislation. It does not just trespass against our national Constitution, written so clearly by the founding fathers just over a century ago; it also trespasses against the basic spirit of this liberal democracy. The question that arises, of course, is: what does happen if there is a real civil emergency verging on civil war? That is why section 119 of the Constitution is there. It says:

The Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence.

That is, if the state government requests it. So there is provision in extraordinary circumstances for the troops to be called out if a state government requests it.

I do not know how we arrogate to ourselves the right to override the Constitution. In fact, we cannot but we may think we can. This is ‘think we can’ legislation, where this parliament is being asked by this Prime Minister and his cabinet to daringly say: ‘Well, that Constitution was written in the 1890s and this is 2006 and we have a non-federalist government centralising powers. If the Constitution stands in the way, forget it; put a piece of legislation through the Senate. No doubt it will be rubber-stamped by the government majority in the other place.’ And it has been. Through it goes while the nation is diverted by the sensational inquiry into the Australian Wheat Board and various other matters.

There is more. The Greens amendments here before the Senate are to give Australian citizens at least the assurance that the International Covenant on Civil and Political Rights will be written into this legislation. We may breach the Australian Constitution—although the Greens will not be supporting that—but are other members of this assembly happy to also breach the International Covenant on Civil and Political Rights? If not, you will be supporting the Greens amendment which says that a test of any action in this legislation will be that it is not in conflict with the right to life as contained in article 6 of the International Covenant on Civil and Political Rights.

We take note of the government’s own Human Rights and Equal Opportunity Commission, which in its submission to the Senate through the committee inquiry said that proposed clauses 51T(2A) and 51T(2B) in this legislation ‘impermissibly widen the circumstances in which the Defence Force is authorised to use lethal force’—beyond the limits set by international law. The New South Wales Council for Civil Liberties and the senior legal authorities in the country expressed concern to all of us in the committee proceedings leading up to our debate today.

Finally, the Greens are moving to amend this legislation by saying: let us remember that we are a democracy and that the people elect a parliament but do not elect a Prime Minister. While the Prime Minister may think that he should have all the powers that this legislation, which he drew up, would give to him, against the strictures of the Constitution and what Australia has stood for over the last 100 or so years, the Greens say that, if the Prime Minister does call out the troops against Australians, parliament should be recalled pronto and either house of parliament should have the right to veto that prime ministerial use of power in such extraordinary circumstances: ‘Let us have a parliamentary debate about what the Prime Minister is doing.’ Can you imagine the uproar? Troops brought out to quell a situation not of domestic violence but, as perceived by the Prime Minister of the day, of threatened domestic violence. Of course parliament should be recalled under those circumstances.

One shortcoming of the Constitution, as the Greens see it, is that parliament is not required to authorise the use of the defence forces overseas—for example, in the Iraq war. The Prime Minister can do that. Unlike the American system, we do not require the head of state to get the permission of the parliament. We should do. But this goes way beyond that. What the Greens amendment does is to very sensibly say that, if the Prime Minister is bringing out troops against Australians, let us recall parliament and see whether both houses of parliament agree to the use of that authority. It has swept aside the need for the states to give permission to call out troops against citizens of that state. Let us have the national parliament—both houses of the national parliament—empowered to immediately review the prime ministerial decision or, in the absence of the Prime Minister, the decision by the Minister for Defence and call off the troops if they are being used for political purposes. It is an extremely important caveat on the excessive and wide-open opportunity for abuse that is written into the legislation which the Howard government has put before the Senate today.

Russell Trood (Queensland, Liberal Party) Share this | Link to this | Hansard source

It is a good opportunity to participate in this debate—the Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 [2006] is an important piece of legislation—particularly after Senator Brown’s rather incendiary contribution to the discussion. The legislation does raise important issues. It is certainly true that, in relation to the evidence before the Legal and Constitutional Legislation Committee, some concerns were expressed about the general direction of the legislation—in particular, the anxiety that some witnesses expressed that it would result in an increasing militarisation of Australian society or that the boundaries between civilian and military authority in Australia would become increasingly blurred and that that was an undesirable development in Australian political culture. I agree with that. I think that, if that were to be the case, it would be an undesirable development in Australian political culture because that has not been our tradition. It has been our tradition in Australia to keep, generally speaking, some separation between the use of our military forces and indeed the use of our policing forces for essentially domestic situations where police forces are of course uniquely well trained.

But I have to say that I think that the fears that have been expressed on this subject have been overstated. Over the 100 years since Federation, there have been many occasions on which the Australian defence forces have been called out. They have been called out, of course, in response to natural disasters, in support of government agencies. They have been asked to provide essential services in the event of strikes—in 1949, in 1953, in 1981 and in 1989. They have been asked to come out in support of the protection of Commonwealth facilities in relation to the possible hijacking of aircraft. Of course, contingency arrangements were made in relation to the Olympic Games in Sydney. I think the one occasion when the Australian defence forces were called out in support of a particular danger of the kind that is envisaged in this bill was in relation to the Hilton bombing in 1978. There is certainly a history of the Australian defence forces being called out in support of civilian needs.

But what is significant about these numerous precedents is that there has been not one occasion in over a century of these call-outs when the soldiers have ever fired upon an Australian citizen. I think that tells us something about the way in which governments since Federation have looked upon this particular power. They see it as a power which is only to be used in particular dire and difficult circumstances. It is not a power that is used, generally speaking, when a Prime Minister has a whim that he wants to suppress some kind of civilian disturbance or something of that kind, as Senator Brown has intimated; it is a power which is used only in very direct circumstances.

The important thing about this bill is that it constrains the circumstances in which that power can be used. It does not give a general authority on behalf of the government to be able to go out and use this power when it seeks to do so; it actually sets down criteria and establishes thresholds. It establishes circumstances in which the power can be used. It is appropriate that the bill should do that. I think many of the fears that have been raised by the witnesses to the legislation committee and also in some of the contributions to the debate this morning have overstated the anxiety that perhaps follows from parts of this bill.

My colleague Senator Payne has been through many of the provisions and matters which were discussed before the Legal and Constitutional Legislation Committee of the Senate. I do not want to spend a great deal of time on them. I just want to make a quick point on the criminal questions which arise in relation to this bill. The bill in fact seeks to plug a shortcoming which exists in the legislation with regard to accountability. I think we are all agreed that there ought to be a measure of accountability when force is used in Australia, whether it is on behalf of the police force or whether it is calling out the Australian defence forces. Those Australian defence forces, when they are called out, ought to be accountable, and they ought to be accountable to some kind of criminal jurisdiction—as indeed defence forces are if they are called out in relation to defending Australian interests overseas, where of course we have the law of armed conflict which applies and which is expanding as time goes on.

It is entirely appropriate that there should be a measure of accountability within the context of the call-out of these forces. Some suggestions have been made in the evidence—and Senator Brown has reiterated them, as has Senator Bartlett—that these provisions do not actually go far enough. They want a rather more restrictive regime, one which actually gives a greater degree of accountability in relation to the call-out of forces. I want to make two quick points about that.

The first point is that the call-out of Australian forces is an exercise of the executive power of the Commonwealth. It may be that that power is being used in support of the states and territories and in particular with regard to certain threats that states and territories see but, in fact, it is the executive power of the Commonwealth which is being used, and it is being used in support of those states and territories where that particular circumstance arises. So the use of executive power puts the use of these forces in a unique position. Because they are in a unique position, it is desirable that they are subject to a unique arrangement. That unique arrangement is that they should be accountable to the Commonwealth rather than to the states and territories. So the bill provides that the Director of Public Prosecutions should be the prosecutorial authority should a prosecution actually be needed.

The second point is that the bill also provides that the laws of the Jervis Bay Territory, which I understand essentially means the criminal laws of the ACT, will apply. It also requires that the Director of Public Prosecutions will at some juncture make a judgment about whether or not a prosecution should take place. Before the Senate Legal and Constitutional Legislation Committee, there was some suggestion that there was an inclination on the part of directors of public prosecutions to be somewhat biased and that we needed a further measure of protection against the bias of the DPPs. I must say, I find that a curious challenge given the fact that most federal and state DPPs around the country jealously guard the particular powers which they have. They regard themselves as independent. DPPs in Queensland and, indeed, New South Wales notoriously are offended by any suggestion that they take a partisan view. There is no reason that I can see that, in relation to this particular piece of legislation, a federal DPP might not equally take an unbalanced view as to whether or not a prosecution should be launched. So there are anxieties here but, to my mind, they are anxieties which can be eased by a close examination of the bill.

I commend the bill to the Senate. I congratulate the chair of the Senate Legal and Constitutional Legislation Committee, Senator Payne, for her conscientious leadership of the discussion on the matter and, in particular, I congratulate the committee staff who worked under tight deadlines and who were required to produce a report in a very short time. They did a very good job, as usual.

Ian Campbell (WA, Liberal Party, Minister for the Environment and Heritage) Share this | Link to this | Hansard source

I thank all of the senators who have made a contribution to the debate on the Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 [2006]. The second reading speech, which was incorporated and tabled, summarises the government’s position on this with great clarity. I do not think it is necessary in summing up to go through that. There are some amendments before the Senate, which will obviously be dealt with briefly in the committee stage, which could well be put off briefly for intervening business.

I just make the point that the original amendments to the defence legislation in relation to aid to civilian authorities were put in there for very good reasons to give clarity to the law that pertains to the use of Australia’s defence forces in aid to civilian situations. These can be complex. They have certainly, since the first amendments were put in place, become more important in the view of the government because of the rising threat of terrorism globally and the quite clear potential threat for terrorism within Australia. There has been a review of those provisions and that review has certainly guided the amendments that are before the Senate now.

I think all of those involved in the debate have sought to assist the government in balancing the very important civil liberties and accountability measures within the bill. The government has looked closely at the recommendations of the committee and the discussions within the Senate committee and has sought to accommodate concerns where we believe we can balance those concerns against the security considerations of the nation, which are regarded by many—and are certainly regarded by me—as the first priority of the Commonwealth government. I sincerely thank all the senators who have contributed, and I particularly thank the members of the Senate Legal and Constitutional Legislation Committee, which did some important work on this legislation, and the Senate staff who contributed as well.

Question agreed to.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I would like to record the Greens and my opposition to the second reading.

Bill read a second time.

Ordered that consideration of this bill in Committee of the Whole be made an order of the day for a later hour.