Chapter 1 - Introduction
Introduction and referral of Bill
1.1
On 7 December
2005, the Defence Amendment (Aid to Civilian Authorities) Bill 2005
was introduced into the Senate. On 8
December 2005 the Bill was referred
to the Legal and Constitutional Legislation Committee for Inquiry and report by
7 February 2006.
Conduct of the inquiry
1.2
The inquiry was
advertised in The Australian
newspaper on 14 December 2005,
and the Committee also wrote to 56 organisations and individuals. Interested
persons were invited to provide submissions by 16 January 2006. Details of the inquiry, the Bill,
and associated documents were placed on the Committee's website.
1.3
The Committee received 17 submissions with six
supplementary submissions. A list of submissions is at Appendix 1.
1.4
The Committee held one public hearing on 31 January 2006 at the New South
Wales Parliament House in Sydney.
A list of witnesses who appeared at the hearing is at Appendix 2 and copies of
the Hansard transcript are available through the Internet at http://aph.gov.au/hansard.
1.5
The Committee thanks those organisations and
individuals who made submissions and gave evidence at the public hearings,
particularly in view of the short timeframes involved.
The Bill
1.6
The Defence Legislation
Amendment (Aid to Civilian Authorities) Bill 2005 seeks to amend Part IIIAAA of
the Defence Act 1903 (the Act). The proposed
amendments cover nine principal areas, and relate to: the use of reserves in
domestic security operations; Australian Defence
Force (ADF) call-out notification requirements; expedited call-out procedures
for sudden and extraordinary emergencies; identification of called-out ADF
personnel; criminal laws and procedures applicable to called out ADF personnel;
ADF powers to protect designated critical infrastructure and respond to
domestic security incidents or threats in offshore areas or in the air.
1.7
A detailed examination of the main provisions of the Bill
is in Chapter 2.
Note on references
1.8
References in this report are to individual submissions
as received by the Committee, not to a bound volume. References to the Committee
Hansard are to the proof Hansard: page numbers may vary between the proof and
the official Hansard transcript.
Background to the Bill
1.9
The Bill must be viewed
in the light of the Australian constitutional arrangements, as well as recent legislative
responses which reflect the changing security environment.
Constitutional powers and defence
aid to the civilian authority
1.10
The ADF was created for the purpose of the defence of Australia
against external threats. The
establishment of the ADF is supported by section 51(vi) of the Australian
Constitution, which grants the Commonwealth government powers over the 'naval
and military defence of the Commonwealth and of the several States'.
1.11
Within the Australian constitutional framework,
policing is essentially a responsibility of the state governments.[1] Using Commonwealth military forces
within Australia
against domestic threats has therefore always presented constitutional
difficulties.[2] On the relatively few
occasions in which it has occurred, the deployment of the military has
essentially been based on two constitutional grounds.
1.12
The first is section 119 of the Constitution:
Protection of states from
domestic violence
The Commonwealth shall protect every State against invasion and,
on the application of the Executive Government of the State, against domestic
violence.
1.13
The second, and more general, basis for the use of
military forces is section 61 of the Constitution, which grants a general
executive power for the 'execution and maintenance of this Constitution and of
the laws of the Commonwealth'.
1.14
As Mr James of the Australian Defence Association told
the Committee, these powers have only been used three times since Federation to
authorise military call-outs for aid to the civilian authorities that involve
the use of force: the Victorian Police Strike in the 1920's; the Commonwealth
Heads of Government Regional Meeting in Bowral in February 1978 and the
Territory of Papua New Guinea in 1970.[3]
Catalysts: Counter-terrorism: 1978 –
2000
1.15
In 1978, defence forces were called out to secure the
NSW Southern Highlands town of Bowral,
where the Heads of Government were meeting following the bombing of the Hilton
Hotel in Sydney.
1.16
Following this, Justice Hope
(a former judge of the NSW Supreme Court) was appointed to conduct a review of
the call-out process for defence forces assisting civilian authorities. Justice
Hope’s report noted that assistance to civilian
authorities lacked accountability, was anachronistic and unsuited to the then current
environment.[4] He recommended
legislative amendments to the Defence Act to rectify this.
1.17
It was not until
2000 that some of the recommendations from Justice Hope's
review were put into legislation. With
the Olympic Games to commence in Sydney
in September 2000 there was concern that this could provide an opportunity for
large scale terrorist activity. This provided the necessary impetus to
establish a legislative framework for domestic call-out that removed any
uncertainty relating to the Commonwealth's powers.
1.18
In June 2000, the Defence
Legislation Amendment (Aid to Civilian Authorities) Bill 2000 (the 2000 Bill)
was introduced into Parliament. Until the introduction of the 2000 Bill
there was no legislative framework that conferred specific powers on members of
the defence force called out in respect to domestic violence, nor was there any
provision for the Commonwealth to act on its own initiative to use members of
the defence force to protect its own interests.[5]
1.19
In the second reading speech for the 2000 Bill,
Dr Sharman Stone MP highlighted that the Act was not considered capable of
responding to then contemporary needs, noting that the call-out provisions of
the Act reflected its 18th century English origins, which focused on
riot control, and predated the establishment of modern police services. Dr
Stone noted the ways in which the Act lacked
relevance to the current environment:
This can be seen by the archaic references in this legislation to the presence of magistrates, the blowing
of bugles and the reading of proclamations, requirements that do not assist, or
may possibly even inhibit, the resolution of modern-day terrorist incidents.[6]
1.20
Dr Stone
observed that the need for a responsive system for call-out has elicited
varying responses in other countries. Some countries in Europe
have established paramilitary forces (for example, in Germany
the GSG 9, the Gendarmerie in France, the Carabinieri in Italy
and the National Guard and Coast Guard in the United
States.) Other countries such as Canada
and New Zealand
endow members of their defence forces with the same powers, obligations and
protections as are available to their police services.[7]
1.21
Neither option was considered appropriate for Australia.
In particular, the federal system would make the second option particularly
difficult to administer, as the powers of police differ from state to state.
The 2000 Bill
and the insertion of Part IIIAAA
1.22
The amendments in the 2000 Bill repealed most of the
existing section 51 of the Act, and added a new Part IIIAAA.
1.23
Broadly, Part IIIAAA deals with the use of the defence
force, including reservists, to protect Commonwealth interests, the states and
self-governing territories, against 'domestic violence'. The amendments in the
2000 Bill were designed ‘to bring the framework
for law enforcement emergencies up to date’.[8]
1.24
Accordingly, the 2000 Bill provided that where the
Prime Minister, Attorney-General and the Minister for Defence are satisfied
that a State or Territory is unable to protect Commonwealth interests against
domestic violence, the Governor-General may authorise, in writing, the Chief of
the Defence Force to use the defence force for that purpose.
1.25
In cases where the Government of a State or Territory
is unable to protect itself against domestic violence, it may apply to the
Commonwealth for that protection: however the authorising Ministers must still
be satisfied that the State or Territory is unable to protect itself against
the domestic violence.
1.26
Once this threshold had been reached, the 2000 Bill
gave to the defence force specific powers relating to the recapture of
premises, freeing hostages, detaining or evacuating persons, and powers of
search and seizure of dangerous things.[9]
Requirement for review of Part
IIIAAA
1.27
In its report on the 2000 Bill,
the Committee recommended that a review of the legislation by a parliamentary Committee
take place within six months of any call-out of the defence force or, if there
is no call-out, within three years of enactment. The result was the insertion of section 51 XA
into the Act which provides that an independent review could be undertaken at
the direction of the Minister if there was no parliamentary report. An
independent review can also take place even if there was no defence force call-out.
1.28
An independent review of the Act was undertaken by Mr
Anthony Blunn AO,
General John Baker AC DSM (Retd) and Mr John Johnson AO APM QPM (the Blunn
Review). The report was presented to the Minister for Defence on 12 January 2004.
1.29
The Blunn Review noted that Part IIIAAA recognised only
a narrow set of circumstances in which domestic violence might be likely to
occur.[10] While suited to the
environment at the time the 2000 Bill was passed,
Part IIIAAA is unsuited to the current security environment and does not
reflect the 2002 Commonwealth Heads of Government Meeting arrangements for
Terrorism and Transnational Crime.
1.30
The Blunn Review also observed that experience in
application of the Part had been gained exclusively through planning and
exercise activities, and even this limited experience revealed flaws which
could inhibit the resolution of anticipated crises.
1.31
Other shortcomings of existing Part IIIAAA noted in the
report were:
-
while recognising the importance of proper
process, there is a lack of focus on outcomes;
-
the processes themselves are time consuming;
-
Part IIIAAA is fundamentally based on
siege/hostage concepts and therefore does not cater for the wide range of
possible terrorist scenarios, including that of a fast moving terrorist
incident;
-
there is no provision for anticipatory
operations by the ADF which may be required to protect Commonwealth assets;
-
issues about the use of the reserve; and
-
issues surrounding the reasonableness of actions
in a military context and the consequent legal responsibility borne by the
military.
1.32
The overall shortcomings of the Act concerned the
largely static nature of the situations that the Act was designed to address.
In its submission to the current inquiry, the Department of Defence noted that:
... it was clear that the current legislative basis for ADF
operations in support of domestic security does not reflect: the evolving
threat environment; recent security initiatives such as the establishment in
March 2005 of the Joint Offshore Protection Command; or the potential range of
tasks faced by both Permanent and Reserve forces in periods of heightened
alert.
1.33
The Department of Defence observed that the threat
environment is evolving, and situations undreamt of even a short time ago are
now feasible. As noted by both the Blunn Review and the Department of Defence:
-
terrorist techniques now commonly use innocent
bystanders as targets rather than simply as hostages;
-
mass civilian casualties may be a terrorist
objective;
-
suicide is commonly used by terrorists;
-
warning times of impending action may be very
short or non-existent;
-
deterrence is not a realistic concept against
terrorist groups or individuals welcoming martyrdom in support of their cause;
-
much greater reliance must be placed on
intelligence, surveillance and border controls to provide adequate warning and
a first line defence;
-
there is likely to be greater call for
anticipatory action possibly involving the ADF to secure potential targets
indicated in intelligence assessments;
-
the approval process for the authorisation of
military assistance to the civilian authority (after call-out) must be
available at very short notice or 'delegated' at the time of call-out in
limited circumstances such as APEC or the Melbourne Commonwealth Games;
-
incidents may go beyond a single site and
consist of series of situations or involve rapid movement rather than a static
stronghold;
-
the use of chemical, biological, radiological or
nuclear agents in urban environments can not be ruled out;
-
a terrorist incident at one site might prompt
the need for concurrent protection of other targets across Australia.[11]
1.34
The speed of events and their potential proximity to
large population centres has made the proposals in the Bill
a matter of urgency. However, in introducing the Bill,
Senator Coonan, representing
the Minister for Defence, Senator Hill, emphasised that:
The amended Bill does not
constitute a change to the fundamental principles underlying Part IIIAAA. ...
while the current threat environment is likely to remain dynamic, the use of
the ADF in domestic security operations remains one of last resort. Equally,
the primacy of the State and Territory authorities and retention of the
military chain of command are central to this bill.[12]
1.35
The Committee notes that the current need to update the
legislative basis for Australia's
counter-terrorist response beyond the provisions enacted in 2000, has been
given added urgency by the terrorist bombings in New York,
Madrid, London
and twice in Bali. However, as the Explanatory
Memorandum states, the principles underlying Part IIIAAA remain the same:
-
the ADF should only be called out as a last
resort where civilian authorities are unable to deal with an incident;
-
where the ADF is called out the civilian
authority remains paramount;
-
ADF members remain under military command;
-
if called out ADF members can only use force
that is reasonable and necessary in the circumstances; and
-
ADF personnel remain subject to the law and are
accountable for their actions.
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