Chapter 2 - Consideration of the Bill
Introduction and overview
2.1
In her second reading speech, Senator Coonan noted that
the broad purpose of the Bill:
is to permit the utilisation of the ADF to protect States and
Territories against domestic violence and to protect Commonwealth interests
where State and Territory jurisdictions do not apply.
And it:
will enhance the ADF’s ability to contribute to operations in
support of domestic security and provide appropriate powers and protections for
ADF personnel during call-out.[13]
2.2
The Bill addresses nine principal areas, many of which
were identified by the report on Part IIIAAA by Blunn et al.[14] The amendments:
-
provide that the Commonwealth assume all power
with respect to criminal offences committed by ADF personnel when operating
under Part IIIAAA;
-
ensure that any ADF elements (including the
Reserves) can be employed effectively in operations in support of domestic
security;
-
allow the use of reasonable and necessary force
when protecting critical infrastructure designated by the authorising
Ministers;
-
enable ‘call-out’ of the ADF to respond to
incidents or threats to Commonwealth interests in the air environment;
-
enable ‘call-out’ of the ADF to respond to
incidents or threats to Commonwealth interests) in the offshore areas;
-
ensure that ADF members acting under Division 2
are not required to wear surname and identification if those same members are
also called upon to act under Division 3;
-
provide that in the event that the broadcast of
Division 3 would jeopardise an operation, the broadcast provisions outlined in
51K(2) do not apply;
-
ensure that the powers conferred to the ADF
under Part IIIAAA can be accorded the ADF in the course of dealing with a
mobile terrorist incident and a range of threats to Australia’s security; and
-
provide
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.[15]
2.3
This
chapter first examines the widened 'triggers' proposed for the call-out of the
ADF, which are at the heart of the Bill. The remainder of the chapter then
considers other aspects of the proposals.
The call-out provisions
2.4
Central to the Bill is
the notion of calling out the ADF to protect Commonwealth interests, as well as
states and self-governing territories against domestic violence. The existing
legislation has been criticised for its 'static' approach. The report by Blunn
et al noted that there was a common view among the departments and agencies consulted
for the review that the application of Part IIIAAA is too narrowly focussed to
be of use in any situation but that of a siege/hostage, and even then its use
is limited.[16] The Bill
addresses this by providing for call-out in a number or situations.
2.5
Under the existing section 51A an order for call-out
can be made if the authorising Ministers are satisfied that:
(a) domestic violence is occurring or is likely to occur in Australia;
and
(b) if the domestic violence is occurring or is likely to occur
in a State or self-governing Territory – the State or Territory is not, or is
unlikely to be, able to protect Commonwealth interests against the domestic
violence; and
(c) the Defence Force should be
called out and the Chief of the Defence Force
should be directed to utilise the Defence
Force to protect the Commonwealth interests against the domestic violence; and
(d) either Division 2 or Division 3, or both, and Division 4
should apply in relation to the order.
2.6
The Governor General under the existing subsection
51A(2) may then by written order call out the Defence
Force.
2.7
The Bill proposes adding
four additional call-out mechanisms. The first three, covering incidents
relating to critical infrastructure, incidents offshore and in the air, are
discussed below, while the special expedited call-out provision is discussed
separately.
New provision: critical
infrastructure
2.8
The bill then adds further circumstances in which this
can occur. Schedule 2 of the bill allows the ADF to provide protection for
infrastructure designated by the government as critical, and allows the ADF to
be authorised to use reasonable and necessary force in doing so.
2.9
Proposed subsection 51CB(2) allows the designation
'critical infrastructure' by authorising ministers where they believe:
(a) there is a threat of damage or disruption to the operation
of the infrastructure or the part of the infrastructure; and
(b) the damage or disruption would directly or indirectly
endanger the life of, or cause serious injury to, other persons.
New Provision: incidents offshore
2.10
Schedule 1 of the bill extends the powers for call-out
where incidents take place offshore. Currently, these operations are authorised
under executive power. As the Explanatory Memorandum[17] points out, the consequence of this is
that military personnel do not receive the same protection for maritime
operations as those conducting similar operations on land.
2.11
To invoke this provision, the authorising minister must
be satisfied that there is a threat to Commonwealth interests in an off-shore
area. Unlike other call-out provisions in Part IIIAAA, this applies only to
Commonwealth interests.
New provision: aviation incidents
2.12
There is no current provision which allows for
countering aerial threats. As with the offshore provisions, these are dealt
with by the use of the power of the Executive. A similar problem exists for ADF
personnel as for the offshore provisions.
2.13
Schedule 3 provides a mechanism for not only calling
out the ADF but also a process for preparatory authorisation by the authorising
Ministers for call-out under specified circumstances, thus providing
authorisation before an incident arises.
2.14
Proposed section 51AB(1) sets out the criteria which
must apply before an authorising Minister can make an order. They are:
(a) if specified
circumstances were to arise:
(i) domestic violence would occur or
would be likely to occur in Australia
that would, or would be likely to, affect Commonwealth interests; or
(ii) there would be, or it is likely
there would be, a threat in the Australian offshore area to Commonwealth
interests (whether in that area or elsewhere); and, for reasons of urgency, it
would be impracticable for the Governor-General to make an order under section
51A; and
(b) if subparagraph (a)(i) applies – the domestic violence would
occur or would be likely to occur in a State or self-governing Territory that
would not be, or is unlikely to be, able to protect the Commonwealth interests
against the domestic violence; and
(c) the Chief of the Defence
Force should be directed to utilise the Defence
Force to protect the Commonwealth interests against the violence, or the threat
in the Australian offshore area, if the specified circumstances arise; and
(d) Divisions 3B and 4 should apply in relation to the order.
2.15
Division 3B sets out the powers relating to aircraft
and Division 4 consolidates the provisions common to Division 2 and 3B. The
proposed Division 2 deals with the powers to recapture locations or things,
prevent or end acts of violence and protect persons from acts of violence. This
has been expanded from the existing powers to recapture buildings and free
hostages.
General concerns over call-out –
the blurring of police and military functions
2.16
The Committee received a number of submissions which
contend that the proposals would erode long standing protections against the
potential for capricious use of the military in civilian matters, and represent
a blurring of the important distinction between the role of the police and that
of the military.
2.17
Of particular concern is the apparent 'permanent
militarisation' of society,[18] and the
'para-militarisation of domestic policing'.[19]
This reflects the view that the use of the ADF should be reserved exclusively
for the purpose of defending Australia
against external military threats.
2.18
This concern is essentially underpinned by three issues.
The first is the fear that military force will be used against legitimate forms
of protest or civil disobedience. The second is that the very nature of the
military – to apply decisive violence to win armed conflict – creates an
unacceptably high risk of the use of excessive force if deployed in a civilian
environment. Thirdly, there is concern that the Executive may use the military
in pursuit of partisan purposes.
2.19
In relation to this last point, it is relevant to note
the legislative differences that underlie the operational control of the
military versus the police. Under section 8 of the Defence Act 1903 (the Act) it is the Minister
who has the 'general control and administration' of the ADF. In contrast under
the Australian Federal Police Act 1979,
(section 37) it is the Commissioner who has the general administration and the
control of the operations of the Australian Federal Police. The independence of
the office of Commissioner therefore allows police to operate with community
confidence in their objectivity and independence, and lack of political
interference.
2.20
While the training and resources available to police
are becoming more sophisticated, their function has not fundamentally altered over
time. In the event of an imminent terrorist threat, it is quite foreseeable
that the scale of resources available to police would be insufficient, because
of the nature of the work they ordinarily undertake. The Committee notes the
point made by Mr James of the Australian Defence
Association, that 'there will always be situations where they will need to call
on the resources of the rest of the government apparatus', and ironically, to
handle lots of things the military would otherwise be called upon to do, the
police would need to be militarised in ways that are probably not desirable
either.[20]
Committee view
2.21
The Committee acknowledges the concerns expressed, but
considers that they must be weighed against the reality of changed
circumstances. The old neat distinctions between external threats of invasion
by another sovereign state, responded to by the military, and the internal
threat of civil unrest against the elected government, for which the police were
responsible, simply no longer applies. As events overseas have unpleasantly
demonstrated, there is a real possibility that threats or attacks may occur
that are beyond the technical expertise or manpower of the relevant police
force. In such circumstances, it is inconceivable that the ADF would collectively
'sit on its hands' and not provide assistance.
2.22
Attempting to adhere to a legislative structure that
was designed to meet outdated circumstances may conceivably be more dangerous
to civil liberties than accepting present realities and creating a legislative
framework that provides rules and procedures for the proper exercise of defence
powers.
Definitions in the call-out powers
2.23
Several submissions observed that the definitions in
the bill are either vague or non-existent. Examples include 'domestic violence'
and 'critical infrastructure'.
2.24
In his submission to this inquiry, Dr
Michael Head observed
that:
‘Domestic violence’ is a vague expression, which is undefined
legislatively or judicially. It is found in s 119 of the Constitution, which
provides that ‘the Commonwealth shall protect every State against invasion and,
on the application of the Executive Government of the State protect such State
against domestic violence’. The term was borrowed from article IV of the United
States Constitution ... The statutory embodiment of this provision in 10 USC §
331 (1964) uses the more specific term ‘insurrection’, suggesting that an
extremely serious level of rebellion must be involved – one that threatens the
very existence of a State government.[21]
2.25
The Australian Muslim Civil Rights
Advocacy Network (AMCRAN) also criticised the bill for its
lack of a precise definition of 'domestic violence' both in its submission[22] and in evidence. In evidence Mr Khan,
Executive Member remarked:
‘domestic violence’... is a vague expression which is undefined
both legislatively and judicially ... Constitutional case law suggests the term
is to be read extremely broadly, to encompass more than terrorism. Strikes,
political demonstrations and industrial action may fall within its meaning. In fact,
in the last 50 years the ADF has been used four times invoking this power and
all four times it has been in industrial action. This raises the worrying
prospect of any protest against government policy facing a broadly empowered
ADF personnel.[23]
2.26
The Federation of Victorian Community Legal Centres is similarly
concerned that the term could be very broadly or narrowly construed, and
therefore applied to situations as wide ranging as industrial action or
political protest.[24]
2.27
The Defence Department
acknowledged the lack of a definition of 'domestic violence'. However, Mr
Pezzullo, the Deputy Secretary, Strategy told
the Committee that:
there are, in my view, sturdy and robust arrangements in place
that I think predated 2002 but have now been codified and formalised through
the intergovernmental agreement that are now practised regularly ... I think it
would become a matter of common view that an incident was about to occur, was
likely to occur or could be anticipated to occur and that ministers in all
jurisdictions would give quite clear guidance – to the ADF in our case at the
Commonwealth level and no doubt to the police forces at the other levels – as
to where the different capabilities that each jurisdiction had were applicable.[25]
2.28
A further term which provoked criticism for being
undefined was 'critical infrastructure'. Clause 2 of Schedule 2 to the bill
inserts in subsection 51(1) a definition of infrastructure. It includes
physical facilities, supply chains, information technologies and communication
networks or systems. The task of declaring infrastructure or part of it, to be
critical infrastructure falls to the Attorney General, the Defence
Minister and the Prime Minister.
2.29
Clause 3 of Schedule 2 inserts proposed section 51CB
(2): before declaring infrastructure to be critical infrastructure, the
authorising Ministers must believe on reasonable grounds that:
(a) there is a threat of damage or disruption to the operation
of the infrastructure or the part of the infrastructure; and
(b) the damage or disruption would directly or indirectly
endanger the life of, or cause serious injury to, other persons.
2.30
In evidence, Mr
Khan of AMCRAN noted:
‘critical infrastructure’ is loosely defined to conceivably
include anything from a building to a computer, to a road, to a telephone
network. In addition to this lack of clarity, the term ‘critical’ itself
remains undefined.[26]
2.31
The Federation of Community Legal Centres in Victoria
made a similar observation in their submission to the Inquiry.[27]
2.32
In relation to critical infrastructure, the definition
of 'infrastructure' covers a range of essential services. Whether it is
'critical' infrastructure is a matter for authorising Ministers to determine in
accordance with proposed section 51CB, which provides:
(1) The authorising Ministers may, in
writing, declare that particular infrastructure, or a part of particular
infrastructure, in Australia
or in the Australian offshore area is designated critical infrastructure.
(2) However
the authorising Ministers may do so only if they believe on reasonable grounds
that
(a) there is a threat of damage or disruption to the operation
of the infrastructure or the part of the infrastructure; and
(b) the damage or disruption would directly or indirectly
endanger the life of, or cause serious injury to, other persons.
Committee view
2.33
The Committee observes that while there is no
definition of 'domestic violence', there are consultative arrangements at a
number of levels in each jurisdiction which would ensure that only incidents of
an extremely serious nature invoked the provisions of the proposed Part IIIAAA.
2.34
The Committee is satisfied that while the terms 'domestic
violence' and 'critical infrastructure' remain undefined, the circumstances in
which they will be invoked contain sufficient checks and balances to ensure
that they will not be capable of unreasonably broad interpretation.
The constitutionality of the
call-out powers
2.35
A number of submissions questioned the
constitutionality of the bill. In his submission, the barrister Mr Warwick
Johnson, stated his concern that 'the proposed amendments may be a partial
divestment or at least an erosion of the Governor General's power'.
2.36
Mr Johnson
explained that this is because section 68 of the Constitution provides:
The command in chief of the naval and military forces of the
Commonwealth is vested in the Governor General as the Queen's representative.[28]
2.37
The reservations expressed by Mr
Johnson were canvassed in an article written
by Sir Ninian
Stephen in 1983;[29] an article also referred to by the Defence
Department in evidence to the Committee.[30]
2.38
Sir Ninian
Stephen concluded that the title of
Commander in Chief is a purely titular one, although it represents a
relationship which expresses both the nation's pride in and respect for, its
armed forces, and the willing subordination of those forces to the civil power.[31] In practice, this means that the
Governor General is obliged to take the advice of the relevant Minister in when
acting in his capacity as Commander in Chief. Accordingly, the proposals do not,
in this view, erode the power of the Governor General.
2.39
Other submissions commented on the constitutionality in
the light of section 119 of the Constitution. The NSW Council for Civil
Liberties said:
Provisions allowing for the domestic call out of ADF personnel
without the consent of relevant State governments extend the powers of the
Commonwealth government beyond those conferred by s 119 of the Constitution. It
is highly questionable if such provisions are supported by a constitutional
head of power, as such the proposed amendments may be constitutionally flawed.[32]
2.40
Similar concerns were expressed by AMCRAN both in their
submission[33] and evidence.[34]
Committee view
2.41
The Committee notes the section 119 issues, and that
they are also partly bound up with the definitional issues concerning the
nature of 'domestic violence'. The Committee considers that the constitutional
support for these amendments is found in section 51(vi) and in the executive
power in s. 61 of the Constitution.
2.42
In a research paper first written in 1991 and updated
in 1998, Elizabeth Ward
argues that:
The Commonwealth's inherent power to call
out the troops on its own initiative is based chiefly upon the executive power
(Section 61 of the Constitution) but other powers which are also relevant are Section
68 and the legislative powers contained in Sections 51(vi) and 51(xxxix) of the
Constitution.[35]
2.43
Ms Ward
also suggests that the external affairs power (Section 51(xxix)) supports
anti-terrorist measures. The examples given are those contained in the Crimes (Aviation) Act 1991 and the Crimes (Foreign Incursions and Recruitment)
Act 1978.
2.44
The Committee considers that there is adequate
constitutional support for the amendments proposed in the Bill.
Ensuring the call-out powers are a
'A last resort'
2.45
The Explanatory Memorandum notes in the Outline to the
Memorandum that:
The underlying principles that inform the operation of Part
IIIAAA remain the same, namely:
·
the ADF should only be called out as a last
resort where civilian authorities are unable to deal with an incident;
2.46
Both the Defence
Department submission and the second reading speech also noted that 'use of the ADF in domestic
security will be a last resort only'.[36]
However, nowhere in the bill is this articulated specifically.
2.47
The decision to call out the ADF in a civil matter, in
the circumstances described in the Bill requires
the person authorising the order to take into account certain factors. For
example, the decision by a Minister to authorise the use of ADF personnel
offshore, must first be satisfied that the threat actually exists. However
there is no further guidance in the proposals as to what factors should lead to
the authorisation.
2.48
The practical difficulty in articulating the 'last
resort' limit is that a definition has the capacity to inhibit the civilian
deployment of defence personnel in situations where it may be well justified. The
Committee considers that in line with its recommendation 1 concerning the
proportionality test in Schedules 1 and 3 of the Bill,
the amendments to Part IIIAAA should include a statement of intent that the
Part should apply only when all other avenues have been considered.
Recommendation 1
2.49
The Committee recommends that the amendments to Part
IIIAAA should include a statement of intent that the Part should apply only
when all other avenues have been considered and rejected.
Ending the call-out
2.50
The existing provisions require that Governor General
end the call-out when the conditions no longer apply. In any event, the orders
cease to be in force 20 days after they are made, unless revoked earlier
(paragraph 51A(4)(b)). The process for revocation requires the authorising
Ministers to be satisfied that the conditions contained in subsection 51A(1) no
longer apply.
2.51
Several witnesses to the inquiry considered that there
should be some fail-safe capacity for a review of the decision for call-out,
and several possibilities can be briefly canvassed.
2.52
The first is a review of the actual decision by the
Governor General or the decision making ministers. Given that the underlying
purpose of the Bill is to create a legislative
framework for rapid and emergency responses to emerging threats, any process of
reviewing these decisions is self-evidently too time consuming and would render
the legislative inoperable. For this reason, this possibility will not be
discussed further.
2.53
However, a more plausible consideration is to introduce
some capacity for a third party to end the call-out – effectively a form of
review. The two institutions most likely to exercise such a right are the
Federal Parliament or the courts.
2.54
The current provisions under section 51X merely require
a report be made to Parliament after the order for call-out has ceased. However,
there is no requirement for the Parliament to discuss or sanction it in any
way.
2.55
In relation to the courts, a central concern would be
the matter of determining who has standing to bring such a challenge. In asking
Dr Khan
how he would propose to launch a challenge to a determination on critical
infrastructure, Senator Ludwig
said:
The difficulty is also that you are describing something that
would be interlocutory in nature. The difficulty then is whether you intend to
have merits review under section 39B of the ADJR Act or use the original
jurisdiction of the High Court for prerogative writs. What you are trying to
suggest is very hazy, unless you can bring to it a bit more sharpness. It does
not seem to make sense to me, unfortunately, unless you can explain how you
intend to define ‘standing’. In other words, is ‘standing’, in being able to
take an action—where that action is going to be interlocutory in nature because
it is going to stop the military or the minister from doing some action or
force the minister to revoke a ministerial decision-going to be based on merits
review or law?[37]
Committee view
2.56
The Committee considers that there is a need for
accountability and transparency, particularly in matters which are designed to
be used as a last resort. However, these measures must be practical.
2.57
As noted above, no form of interlocutory review is
feasible by reason of the time constraints. It should also be recognised that
any government that chooses to exercise these provisions must face the
political consequences of their decision. If there is a genuine national emergency
of the sort envisaged by the Bill, there is
unlikely to be any significant disagreement with the decision. However, where
the grounds for the call-out were dubious, the government would face
considerable criticism. This is likely to act as a genuine deterrent to any of
the more opportunistic or cynical deployments under the proposed law.
2.58
In recognition of this, the Committee does see merit in
providing for the recall of Parliament within a short time of the call-out, in
order to debate the decision. Parliament should have the opportunity to be
informed about and discuss the order at the earliest possible opportunity. If
the call-out has genuinely been a 'last resort' measure in conditions of
national emergency, it would be expected that the Parliament would convene
anyway, so such a requirement would amount to regulating best-practice, while
at the same time instituting an important procedural guarantee. The Committee
does not however, consider that it is appropriate or necessary to grant the
Parliament a power to end the call-out. As Mr
James pointed out, these decisions are
traditionally the preserve of the Executive, and in any case, Parliament
retains the rights to curtail an overly adventurous Executive by reason of its
control of the purse-strings.[38]
Considerations of other aspects of the Bill
2.59
The provisions of the Bill
will be discussed in the order in which they are summarised in the Explanatory
Memorandum.
Application of criminal laws
2.60
The current Part IIIAAA contains no provision for
dealing with offences alleged to have occurred during a domestic security
operation. The proposed Division 4A inserts section 51WA which provides:
(1) The substantive
criminal law of the Jervis
Bay Territory, as in force from time to time, applies in
relation to a criminal act of a member of the Defence Force that is done, or purported to be
done, under this Part.
(2) 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.
2.61
The Commonwealth Director of Public Prosecutions (DPP)
will prosecute the offences.
2.62
The Bill also provides a
defence of 'superior orders' in certain circumstances where
(a) the criminal act was done by the member under an order of a
superior; and
(b) the member was under a legal obligation to obey the order;
and
(c) the order was not manifestly unlawful; and
(d) the member had no reason to believe that circumstances had changed
in a material respect since the order was given; and
(e) the member had no reason to believe that the order was based
on a mistake as to a material fact; and
(f) the action taken was reasonable and necessary to give effect
to the order.
2.63
While it is clear that there are advantages in having a
single set of laws apply to defence personnel involved in a call-out for a
domestic violence incident, concerns were expressed at the immunity from state
and territory laws. The Federation of Community Legal Centres in Victoria
said;
These provisions ... act to significantly impede the community’s
capacity to make ADF members accountable for their actions during a call-out.
This lack of accountability not only means that the response to criminal acts
by ADF personnel may be inadequate, but furthermore this lack of accountability
may also make the occurrence of criminal acts more likely.[39]
2.64
Both the Federation of Community Legal Centres and Dr
Ben Saul[40]
noted the potential for the Commonwealth DPP to be pressured in relation to
prosecutions for excessive use of force. Dr
Saul also suggested that the defence of
superior orders is inappropriate in a domestic context as it has its origins in
the law relating to armed conflict.
2.65
The NSW Cabinet Office sought clarification as to the
process for prosecution of these offences. The Director, Mr Roger Wilkins
noted:
This raises a number of questions in regard to practical
matters. For example, if a soldier were to commit a criminal offence in Western
Australia, but was liable under ACT law, who would
investigate the offence? Under what powers could the person be arrested and
questioned outside the ACT? How would the person be granted his or her bail
rights? The transfer of the trial to the ACT Supreme Court may also cause
logistical problems for victims and witnesses. These matters require
clarification.[41]
2.66
In evidence, Mr Mark Cunliffe Head of Defence
Legal, Department of Defence responded to Mr
Wilkins' concerns and indicated that it was not the intention of the bill to
suggest that all matters would be prosecuted or considered for prosecution in
an ACT court. He continued;
The structure creates Commonwealth offences in a similar way to
some other Commonwealth legislation, such as the Customs Act. They are not ACT
criminal offences, and they could in fact be prosecuted wherever. The law that
will apply will be the law in the Jervis
Bay territory. That in actual terms
is ACT criminal law, but the prosecution might be in Queensland,
Western Australia, Tasmania
or wherever it happened to be.[42]
Committee view
2.67
The Committee considers that it is important to provide
a consistent framework for dealing with offences committed by the military
during a call-out. This cannot be achieved if the behaviour of troops is
subject to the variable laws of the states and territories. It is also notable
that should the state or territory wish to do so, there is nothing in the
legislation which prevents state or territory police investigating an offence
purported to be done by defence force members when operating under Part IIIAAA.[43] The Committee also considers that as a
federal entity, ADF prosecutions rightly should be conducted by the
Commonwealth DPP, an independent statutory appointee.
The use of Reserve Forces in
domestic security operations
2.68
The amendments to Clause 6 of Schedule 6 of
the Bill remove the restrictions on the use of Defence
Force Reserves to support domestic security operations.
2.69
Section 51G of the Defence Act 1903 ('the Act') currently restricts certain utilisation
of Defence Force personnel:
In utilising the Defence Force
in accordance with section 51D, the Chief of the Defence
Force must not:
...
(b) utilise the Reserves unless the Minister, after consulting
the Chief of the Defence Force, is satisfied
that sufficient numbers of the Permanent Forces are not available.
2.70
The current exclusion in subsection 51G(a) of the
Act on the Chief of the Defence Force
utilising Reserves to 'stop or restrict any protest, dissent, assembly or
industrial action' is not the subject of amendment.[44]
2.71
Mr Pezzulo (Department of Defence)
stated:
We are seeking several changes to the legislation that concern
operational realities. They include: recognising that reserves are very much
integrated into certain parts of our force structure and, therefore, we think
it is no longer logical to seek an extinguishment of the use of permanent
forces before we can use reserves...[45]
2.72
Mr Khan, representing AMCRAN, outlined some objections
to the use of Reserves in domestic security operations:
The powers conferred on [Australian Defence
Force] ADF personnel are not extended to reserve or emergency forces. These
groups of personnel lack the experience, training and professionalism of
full-time ADF members. They represent the clearest and most obvious potential
for misuse and abuse of the proposed extension to ADF personnel powers.[46]
2.73
Whilst AMCRAN did not recommend any changes to the
provisions of the Act made in 2000 that allow for the call-out of Reserves,
they argued that Reserves should only be called out as 'a last resort' (that
is, when no other ADF staff are available).[47]
2.74
The New South Wales (NSW) Cabinet Office advised that
the NSW Police Force thought that 'the use of Reserves in tactical assault
situations is not appropriate'.[48] They
recommended that 'consideration should therefore be given to excluding the use
of Reserves in exercising powers' under the Defence
Act.[49]
2.75
Submissions from the Department of Defence
and the Australia Defence Association (ADA)
both supported the use of Reserves in domestic security operations. It was
argued that current restrictions in the Defence
Force Act do not reflect the increasingly integrated force structure of the Defence
Force. The ADA submitted that 'it
is simply not operationally possible to make strict definitions about when you
can and cannot use part-time and full-time forces'.[50]
2.76
There were also criticisms of the level of training
which reserves possess compared to full time service persons. In evidence Mr Khan of AMCRAN said:
We also recommend that
the powers conferred on ADF personnel are not extended to reserve or emergency
forces. These groups of personnel lack the experience, training and
professionalism of full-time ADF members. They represent the clearest and most
obvious potential for misuse and abuse of the proposed extension of ADF personnel
powers.[51]
2.77
In evidence both Mr James of the Australia Defence
Association and Mr of the Defence depertment
vigorously refuted this argument. Mr
James said:
There seems to be in a number of the
public submissions ... a complete misunderstanding of the new, modern, integrated
structure of the Defence Force. It is simply not operationally possible to make
very strict definitions about when you can and cannot use part-time and
full-time forces, because a number of the units are now so integrated that it
would just be operationally ludicrous to try.[52]
2.78
Mr Pezzullo observed:
... reserves are very much integrated
into certain parts of our force structure and, therefore, we think it is no
longer logical to seek an extinguishment of the use of permanent forces before
we can use reserves; [53]
Committee view
2.79
The Committee acknowledges the arguments expressed by
AMCRAN and the NSW Cabinet Office regarding the removal of the restrictions on
use of Reserves. In response to AMCRAN's concerns, the committee is of the view
that Reserves, if required, can support Permanent Forces in providing responses
to security incidents on Australian soil. The Committee certainly recognises
that the Reserves are becoming increasingly integrated into parts of the Defence
Force structure and that the professionalism and level of training received is
appropriate to take action in domestic incidents. The committee considers that
there is no in-principle reason why Reserves should not be freely available to
the Chief of the Defence Force (CDF) to
deploy. The key issue is one of training and capability of the units and
individuals concerned – a matter common to all forces, both permanent and
reserve. This is a matter appropriately left to the discretion of the CDF.
Maintaining the current exclusion on the use of Reserves in 'strike-breaking'
is supported by the Committee. The Committee is of the view that the clause be
passed in its current form. The Committee endorses the provisions in the bill
concerning the use of reserves.
Use of force to protect critical
infrastructure
2.80
The Bill authorises the
use of force to protect critical infrastructure. Currently, State and
Commonwealth law only authorises force where an attack on infrastructure is
likely to cause immediate death or injury. The change is said to be necessary
because:
The increasingly close interrelationships between
infrastructure, critical services and facilities means that the destruction or
disabling of a system or structure could have significant flow-on effects that
may result in loss of life or serious injury. Examples include the potential
loss of power to a hospital, the disruption of communications and the
interruption of vital utilities. Sophisticated terrorists may employ tactics
that could disable critical infrastructure without posing an immediate and
direct threat to those within its environs.[54]
2.81
Once the declaration to call out the ADF has been made,
the ADF is then authorised to protect critical infrastructure by use of force. However
this is circumscribed by proposed section 51T(2A) which provides that in using
force against a person, a member of the ADF must not:
(a) do anything that is likely to cause the death of, or
grievous bodily harm to, the person unless the member believes on reasonable
grounds that doing that thing is necessary to:
(i) protect the life of, or to prevent
serious injury to another person (including the member); or
(ii) protect, against the threat
concerned, the designated critical infrastructure in respect of which the
powers are being exercised; or
(b) subject the person to greater indignity than is reasonable
and necessary in the circumstances.
2.82
The authorisation of ‘lethal force’ to protect property
was a source of some comment by submissions and evidence to the Committee.
2.83
AMCRAN expressed reservations regarding the use of
force, and contends that the provision deviates from a long held legal
principle that killing or causing grievous bodily harm to protect property is
not permissible.[55]
2.84
Mr Bhasin
from the NSW Council for Civil Liberties outlined the Council's concern with
the provision:
... the right to life is considered a supreme right which cannot
be abrogated even in times of public emergency. As such, the intentional lethal
use of force by the state should be strictly limited to circumstances where it
is unavoidable to protect life. It is an extreme measure only to be used in the
most extreme circumstances. However, as currently drafted, at a minimum,
proposed section 51CB(2)(b) only requires that authorising ministers reasonably
believe that there is a threat of damage or disruption to infrastructure that
would ‘indirectly endanger the life of, or cause serious injury to, other
persons’.[56]
2.85
The Human Rights and Equal Opportunity Commission
(HREOC) took the view that the provision should be excised from the Bill
as it potentially places Australia
in breach of article 6 of the International Covenant on Civil and Political
Rights.[57]
2.86
In contrast, the Australia Defence
Association noted 'that current laws do not cover the protection of critical
infrastructure from attack' and endorses the proposal noting that there are
safeguards: notably that the authorising Minister must:
be first satisfied that an attack on the designated
infrastructure will result in direct or indirect loss of life or serious injury
before the ADF can be so used.[58]
2.87
In evidence, Mr Neil
James, Executive Director of the Association
observed that, since Federation, the Defence
Force has only been called out to provide aid to the civil power in a 'force
situation' on three occasions, and in two of these situations, force was not
used.
In fact, in New Britain in 1970, while the call out was proclaimed, the troops were
not actually used. In 1978, while the troops were called out and were used, no
force was actually applied to anyone. In the Victoria
police strike of the mid 1920s the limited numbers of troops then available to
the Victorian government were provided by the Commonwealth at the Victorian
government’s request when there was reasonably serious rioting in the centre of
Melbourne, and much looting. So in 105 years there have only been three
incidents of this type of activity being required and all of them in quite
extreme circumstances.[59]
Committee view
2.88
The Committee notes the concerns expressed in the
submissions regarding the use of lethal force and the protection of critical
infrastructure. However, the Committee considers that it is essential to
recognise that the powers for which provision is being made are for
implementation in the most extreme circumstances. It is also important to recognise
that our society is highly dependent on complex and all-encompassing
infrastructure. An attack on any part of it has the potential to threaten life
indirectly as well as compromise the ability of the country to defend itself.
2.89
The Committee considers that the requirement in
proposed section 51CB for the authorising minister to believe on reasonable
grounds that there is threat of damage or disruption to critical
infrastructure, and that there is a direct or indirect danger to the other
persons, is sufficient to ensure that the provisions will be exercised only in
extreme circumstances. The Committee supports the proposals contained in the Bill
concerning the use of force.
Responding to incidents or threats
to Commonwealth interests in the air and to off-shore interests and internal
waters
2.90
Currently there are no provisions in Part IIIAAA
of the Act to enable the Defence Force to
conduct operations against threats in the air, in the Australian offshore area
or in internal waters.[60] Current
operations in these areas are authorised under the Government's Executive Power
under section 61 of the Constitution. The previous section discussed the
call-out triggers for using the ADF in these circumstances. This section
focuses on the conditions imposed by the Bill
for the use of force once call-out is put into effect.
2.91
Schedules 1 and 3 grant broadly similar powers to the Defence
Force to enable a response to threats to Commonwealth interests in the
Australian offshore area and in the internal waters of a State or Territory, or
in the air.[61] The schedules authorises two levels of involvement by an ADF member
with respect to the taking of measures against a vessel or aircraft: first, the
ADF member actually using force, and second, for the ADF member giving the
order.[62]
2.92
The Bill imposes
conditions on the use of these measures, maintaining strict control over the
engagement of any vessel or aircraft through the process of Defence
Force personnel being given and responding to orders. The specific limits
imposed draw upon the principles that would apply to acting under lawful
authority.
2.93
Four key tests are laid down:
-
The
member must not believe the order to which they are responding is unlawful, nor
must the order be manifestly unlawful.
-
The
member does not have authority to act if the member has reason to believe that
the circumstances have changed since the order they have received was given, or
that the relevant order was based on a mistake as to a material fact.
-
Measures
taken must be reasonable and necessary to give effect to the order received by
the ADF member.
-
The
giving of the order to use force must be reasonable and necessary to give
effect to the relevant superior order.
2.94
A number of concerns were expressed about the powers
afforded to the Defence Force by the amendments.
2.95
The first relates to the adequacy of the 'reasonable
and necessary' test. HREOC acknowledges that the bill imposes conditions on the
use of the powers of the Defence Force in
Schedules 1 and 3, but 'submits that these safeguards should be strengthened or
clarified'.[63]
The commission's submission is that in view of the fact that
these orders authorise measures that may well lead to the loss of life,
'reasonable and necessary' is not a stringent enough condition to reflect the
international law requirement of proportionality.[64]
2.96
HREOC is concerned that the proposed amendments 'may
not adequately safeguard the right to life under article 6 of the
International Covenant on Civil and Political Rights (ICCPR)'.[65] HREOC submitted that the Bill
should be amended to include stronger conditions than those already being
proposed.
2.97
HREOC proposed the additional of a stronger
proportionality test for Ministers authorising action and for members of the Defence
Force giving orders potentially leading to the loss of life. It argued that
this would ensure that only 'the most exceptional cases' could justify action
being taken.[66] That is:
the process whereby the minister authorises the taking of new
measures should be subject to the condition that the minister is satisfied that
the purpose for which the measure is authorised cannot be achieved by a lesser
measure.[67]
2.98
Ms O'Brien, a Senior Lawyer with HREOC, stated that the
additional safeguard of 'the least restrictive means' does not add a level of
complexity and analysis for serving personnel, but rather prompts personnel to
question what is 'reasonable and necessary' in the circumstances.[68]
2.99
A key concern of the Committee is the operation of such
a test and whether it is objective or subjective. In Committee hearings, Senator
Johnston expressed concern that the test
would require the member of the ADF to look at a 'quite complex matrix of
adjudication of what is the lesser capability to be employed...' when
interpreting and carrying out orders.[69]
In response, HREOC submitted that 'that member [of the ADF] must be satisfied
[that there is not a lesser measure that could achieve the aim], which will be
a subjective test'.[70] It was
emphasised that decisions that must be made rapidly, by soldiers in a high
pressure situation, should not be subject to a later judgement made with the
benefit of hindsight. Consideration was also given to the need for objectivity
at the time an order is made, in the same way that the 'reasonable and
necessary' test would be interpreted.[71]
2.100
A further issue arises in relation to the operation of
proposed powers in the offshore area. In relation to an offshore designated
area in the offshore general security area, proposed section 51SO introduces a
power to require persons to answer questions or produce documents where it is
reasonably necessary for: the purposes of preserving life; the safety of
others; or the protection of Commonwealth interests.[72] Proposed subsection 51SO(4) deals with
the issue of self-incrimination and reflects what the Explanatory Memorandum
claims to be existing Commonwealth law on this issue.[73]
(4) A person is not
excused from answering a question or producing a document under this section on
the ground that the answer to the question, or the production of the document,
may tend to incriminate the person or make the person liable to a penalty.
2.101
Senator Ludwig
expressed concern about the broad nature of this power and questioned how the
immunities operate to prevent future prosecution of relevant persons. Subsection 51SO(5) says that:
(a) the answer given or
document produced; or
(b) answering the
question or producing the document; or
(c) any information,
document or thing obtained as a direct or indirect consequence of the answering
of the question or the production of the document;
is not admissible in
evidence against the person in criminal proceedings other than:
(d) proceedings for an
offence against subsection (3); or
(e) proceedings for an
offence against section 137.1 or 137.2 of the Criminal Code (about false
or misleading information or documents) that relates to this section.
2.102 Senator Ludwig said:
In a normal ACC
[Australian Crime Commission] examination for the use of that power, they have
trained persons who determine when they will ask the question, what questions
will they ask and what documents they call for. There does not seem to be any
limitation on how that power will operate ... It seems to be a soldier on the
beat, so to speak.[74]
2.103 In particular, the wording of this section
suggests that too great a limit is put on the capacity to use material seized
or answers given in subsequent prosecutions.
2.104 Mr Cunliffe, the Head of Defence
Legal, Department of Defence,
said that personnel would be trained and the context of the situation is likely
to limit the actual use of the power (that is, in the offshore general security
area).
I would anticipate that
the situation in which the person is, where the power exists, is already
somewhat fraught and that they are attempting to do a particular exercise, not
something which is a general investigation.[75]
2.105
In a written response to the Committee, expanding on
this, the Defence Department said:
It is envisaged
that the powers in this section would be used in limited circumstances. This
may include a scenario where it may be required to compel a master or crew
member to hand over the manifest or other documents which would show where
dangerous goods/cargo were stored (so that an assessment could be made as to
whether they posed a threat to persons/Commonwealth interest, or to assist in
neutralising any threat).
The sub-section
regarding immunity is consistent with other Commonwealth legislation which
contains these provisions.
This section does
not provide immunity with regard to documents/information obtained. Rather,
this provision makes the documents/information (or information/document/thing
obtained as a direct or indirect consequence of the answering of the
question/production of the document) inadmissible in evidence in any subsequent
criminal proceedings.
2.106
Finally, the Federation of Community Legal Centres
(Victoria) (the Federation) expressed concerns about the treatment of asylum
seekers as a result of the new powers the Defence
Force will have in the Australian offshore area. The Federation noted that the Migration Act 1958 'already permits the
use of 'necessary and reasonable' force to prevent off-shore entry to Australia'
and cautioned that the bill would permit the Defence
Force to deter or prevent the arrival of unarmed asylum seekers in Australia
with the use of weapons.[76] The
Federation recommended that an exception for asylum seekers should be provided
in the bill.[77]
2.107
The Department of Defence's submission highlights the
changing nature of security threats and emphasises that the current Part IIIAAA
is land-centric in its application. An extension of the Defence Force's powers
to respond to threats to Commonwealth interests in aviation and maritime
environments, recognises that the Defence Force is likely to be the only agency
equipped to address issues in such situations and gives Defence Force personnel
the same powers and protections afforded in land-based operations.
2.108
The Australia Defence Association also described the
amendments as 'logical and justified'.[78]
Committee view
2.109
The Committee has considered the recommendations made
by HREOC, and supports the inclusion of a stronger proportionality test in
Schedules 1 and 3. In the Committee's view, the least restrictive means test is
a more stringent proportionality test than simply considering what is
'reasonable and necessary'. The aim of such a test would be to seek a balance
between community and social needs, the lawfulness of the objectives and the
achievement of goals via the least restrictive means.
2.110
In relation to Australia's
obligations under the ICCPR, the Committee does not recommend any changes to
51SC which states that:
The authorising Ministers or an authorising Minister must, in
giving an authorisation or making a declaration under this Division, have
regard to Australia's
international obligations.[79]
2.111
The submission from the Victorian Federation of
Community Legal Centres outlined concerns about the potential for the exercise
of disproportionate use of force on asylum seekers attempting to come to Australia.
The Committee strongly recognises the importance of upholding Australia's
international legal obligations and believes these principles are reflected in
the proposed amendments.
2.112
The Committee believes that the proposed amendments
will allow the Defence Force to be utilised appropriately in response to aerial
and maritime threats to Commonwealth interests. As noted in the Explanatory
Memorandum, such threats have the capacity to cause serious consequences,
including mass casualties and destruction of property. The Committee recognises
that the Defence Force is the principal agency equipped to take action in the
event of a threat and also to undertake preparatory operations to minimise
future risks from the air and water.
2.113
The legislation governing these actions, and the
protections afforded to personnel, should be consistent with that already given
to land-based activities. Given the changing nature of security threats against
the Commonwealth, States and Territories, the proposed amendments to Part IIIAAA
will provide clear parameters in which the Defence Force can operate.
Recommendation 2
2.114
The Committee recommends that a stronger
proportionality test be included Schedules 1 and 3.
2.115
The Committee considers that the remainder of Schedules
1 and 3 be passed without amendment.
Numerical identification of ADF
personnel in certain circumstances
2.116
The
amendments to Part IIIAAA concerning surname identification are a result of the
findings outlined in the Blunn Report.
2.117
According to the Report, existing provisions for
ensuring appropriate identification of personnel in Divisions 2 and 3 of Part IIIAAA
result in unintended consequences:
If both Divisions are
applied a member of the assault force may exercise any of the powers in
Division 3 authorised, including the power to search persons, but must wear a
uniform and identification including having his or her surname attached to the
front of his or her uniform. This contrasts with the situation where a member
exercising the powers authorised under Division 2 is quite deliberately not
required to wear name tags in order to protect their anonymity.
2.118
The rationale behind the amendments is to preserve
anonymity of specialist forces. As the Australia Defence Association notes, it
is proposed that such personnel will be identified only by a number, similar to
police identification processes.
Committee view
2.119
The Committee believes that preserving the anonymity of
special forces personnel in the public arena is important. As the Australian Defence
Association highlights:
ADF personnel are Australian citizens too. Given the many
difficulties involved, they are entitled to protection and clear guidance when
ordered to implement aid-to-the-civil-power support in emergency situations.[80]
2.120
Where identification by name is not appropriate, the Committee
supports the development of a suitable numeric identification system. This will
enable the involvement of individual personnel to be monitored and to ensure
that appropriate accountability mechanisms are in place. The Committee endorses
the proposals in the Bill concerning the wearing
of identification by ADF personnel.
Public notification of some Defence
Force activities
2.121
Where
areas are 'designated' in the event of a domestic security incident, there is a
requirement under the current law to broadcast its establishment on radio or
television. Under the proposed amendments to Clause 11 of Schedule 6, the
broadcast and notification requirements will be changed to provide an exemption from
notifying where to do so would prejudice a specific operation.
2.122
This exemption
is only available in limited and specific circumstances. An example of where exclusion
from the Act may be required would include the resolution of a siege or hostage
recovery operation.[81]
Committee view
2.123
The Committee
believes that exceptions to the notification and broadcast requirements under
the Defence Force Act are justified on practical
grounds in the event of some national and localised security incidents. The
Committee considers that the proposals in the Bill
concerning notification and broadcast be passed without amendment.
Powers apply to a range of
terrorist threats, including 'mobile' incidents
2.124
The existing Part IIIAAA was found by the Blunn Report
to be inadequate in a number of ways. In particular, the report notes that the
existing legislation:
... covers only a limited set of circumstances, is fundamentally
based on siege/hostage concepts and does not effectively cater for the wider
range of terrorist scenarios now envisaged.[82]
2.125
As well as adding to Part IIIAAA to include maritime
and aviation incidents, the proposed amendments repeals the current subsections
51I(1) and (2) and inserts new subsections which as the Explanatory Memorandum
puts it, 'remove the 'land-centric' nature of the current wording.[83] The amendments also add definitions of
'location' (includes any premises or place) and 'thing' (includes any means of
transport but does not include an aircraft that is airborne) to the list of
definitions.
2.126
The effect of the amendments is to give the Defence
Force powers to take action to recapture a location or thing; prevent or end
acts of violence, and protect persons from acts of violence (proposed paragraph
51I(1)(a)).
2.127
In addition, in taking the action, the ADF may:
-
free any hostage from a location or thing;
-
detain persons whom the ADF member reasonably
believes have committed a Commonwealth State or Territory offence;
-
control the movement of persons or means of
transport;
-
evacuate persons to a place of safety;
-
search persons or locations or things for
dangerous things or other things related to the domestic violence that is occurring
or is likely to occur;
-
seize any dangerous thing, or other thing
related to the domestic violence that is occurring or is likely to occur, found
in such a search; and
-
do anything incidental to anything noted above.
2.128
The action taken under these sections must be
authorised in writing by an authorising Minister (proposed section 51(2)).
2.129
The submission by the Federation of Community Legal
Centres in Victoria
views these expanded powers with some concern. The submission notes:
It is our submission that these extraordinary powers are
excessive and unjustified given the current level of terrorist threat in Australia.
Furthermore, it is worrying that these powers are afforded without adequate
mechanisms for accountability and transparency.[84]
2.130
The Defence Force explained to the Committee in
evidence that;
We are seeking several changes to the legislation that concern
operational realities. They include: ...recognising that modern threats can
sometimes be mobile and not fixed in terms of premises; ... It might help the Committee
to think of it in terms of ... recognising some operational and tactical
realities of how our forces operate.[85]
Committee view
2.131
The need for accountability has featured in discussion
in submissions as well as in evidence before the Committee. However, the expansion
of Division 2 recognises the nature of modern threats, and addresses the need
for a correspondingly more flexible legislative environment.
2.132
In relation to the extent of terrorist threats, the
Committee takes the view that it impossible to assess them extent without the
specialist knowledge possessed by those agencies whose job it is to collect it.
Governments ignore at their peril, the possibility and consequences of
terrorism; this Bill is an important part of
government strategy to protect its citizens.
Expedited call-out
2.133
In their Report on Part IIIAAA, Blunn et al noted that
the processes under Act 'are time consuming and complex and although emergency
action is authorised this negates the process'.[86]
2.134
Proposed 51CA of the bill provides for an expedited
call-out procedure which can be implemented at short notice, in situations such
as rapidly developing aviation or maritime threats.[87] The Prime Minister will be able to
make a call-out order (which the Governor General would ordinarily make) in the
event of a sudden and extraordinary emergency where it is not practical for the
usual call-out order to be made. Where the Prime Minister is not contactable,
the order can be authorised by the two other authorising Ministers (s 51CA(2)).
2.135
Orders need not be in writing (proposed s 51CA(4)). However
a written record of the order must be made, signed by the person(s) giving the
order and witnessed.
2.136
The provisions are designed to meet situations which
are fast developing. The Department of Defence gave the following example:
Say the ADF was cooperating with civil authorities in relation
to quarantine issues, people-smuggling issues and fisheries compliance issues
and, under the cover of offshore maritime activities, a terrorist group decided
to attack infrastructure, hijack craft, take people hostage and the like. Those
developments might well break very quickly on you. Given the speed with which
these things can unfold and the capabilities terrorists have these days in
terms of communications and means of transportation, we think that in terms of
combating that threat we need to have a circumstance where members of the
executive, who are much better connected these days than they have ever been
with secure communications, can quickly give effect to a call-out by doing
something as simple as making a secure telephone call which can be properly and
duly recorded later.[88]
2.137
There was little comment about these provisions in the
submissions received by the Committee. The Federation of Community Legal
Centres observed that the proposed section was of concern in the light of the
lack of definition of key terms in the bill; the Federation's concern was that
vagueness coupled with very broad discretions could result in very broad
interpretations of what constitutes 'extraordinary' circumstances.
Committee view
2.138
The Committee notes the Department of Defence's
explanation of the need for these provisions. The potential circumstances
described by the Department require swift and emphatic action in ways not
contemplated even 5 years ago.
2.139
The Committee also considers that the note in the
explanatory memorandum, should be emphasised. Paragraph 136 states;
This amendment is not intended to circumvent existing processes,
and is instead only to be used in a sudden and extraordinary emergency (such as
rapidly developing aviation or maritime threats).[89]
2.140
The Committee considers that the Bill
provides as far as possible for the contingencies which could give rise to the
need to call-out the ADF to assist civilian authorities.
2.141
In general, the Committee considers that the Bill
meets the identified need for legislation that enumerates and clarifies the
rules for the call-out of the ADF in the current security environment. In
practice, the proper application of these considerable powers requires a high
degree of training for ADF personnel and the support of carefully crafted
military doctrine. The Committee notes the assurances it has received from the
Department of Defence that these will occur.
Senator Marise Payne
Committee Chair
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