Additional comments from Senator Andrew Bartlett
Introduction
1.1
These proposed amendments to Part IIIAAA of the Defence Act 2003 are a response to the
statutory review (the Blunn Review) of Part IIIAAA and changes to the global
security environment.
1.2
The Democrats agree with the recommendations put
forward in the report to:
-
Include a statement of intent for Part IIIAAA.
-
Recommend a stronger proportionality test for
Schedules 1 and 3.
1.3
The Australian Democrats recognise the need for Australia
to possess a flexible and responsive defence force to meet immediate challenges
in today’s heightened security environment. We also recognise the need for the
defence force to be used in a wide range of scenarios including Australia’s
offshore areas and in the air. We do, however, still hold further concerns
regarding the Bill as it has been presented.
Definitions
1.4
As in our report to the Committee’s inquiry into the Defence
Legislation Amendment (Aid to Civilian Authorities) Bill 2000, we remain
concerned at the vagueness of undefined terms such as 'Domestic Violence' and 'Commonwealth
Interest'.
1.5
The Democrats note that the Committee Report does raise
the many concerns presented to the Inquiry on the vague definition given to 'Domestic
Violence' and notes the Committee’s faith in current accountability mechanisms
and consultative measures that such definitions are not read in their broadest
and, therefore, most meaningless contexts.
Designated Critical
Infrastructure
1.6
Under Schedule 2 of this Bill,
'...authorising Ministers may, in writing, declare that particular
infrastructure, or part of particular infrastructure, in Australia
or in the Australian offshore area is designated critical infrastructure.'
1.7
In their
submission to the Inquiry, the New South Wales Government raised the issue of
notification of this designation to the States. The Democrats believe that, as
with the calling out procedure, the designation of critical infrastructure
within a State or Territory should require the Government to consult with the
relevant State or Territory Governments. This should either be done before such
a designation is made or, subject to urgency, as soon as practicable after the
event.
Use of Force
1.8
The submission from the Gilbert & Tobin Centre of
Public Law drew attention to a concern with the possibility of a broad
interpretation of clause 51T(2A). They suggested the wording of the clause 'suggests
that it may be permissible to inflict torture or cruel, inhuman or degrading
treatment on a person, where this is necessary to
protect life, prevent serious injury or protect critical infrastructure, and
where this does not amount to subjecting a person to greater indignity than is
reasonable and necessary in the circumstances.'[90]
1.9
The Democrats believe this clause should be redrafted
to specifically rule out the use of torture and other cruel, inhuman or
degrading treatment, particularly given global controversy about whether a
degree of acquiescence is developing amongst western government for the use of
some forms of torture.
Accountability and
Transparency – Expedited Call Out
1.10
Due to the extreme and unforseen circumstances which
this legislation has been designed to address, the Australian Democrats believe
that Parliament should be recalled as soon as practicable after any expedited
call out in order to debate the decision.
1.11
While we recognise that in the case of an emergency
situation that this would be impractical to facilitate before or during an
event, we believe that this measure would act as an additional check on the
processes that are currently in place in the Act under section 51X and 51XA.
International Obligations
1.12
The Australian Democrats hold the view that the under
proposed section 51SC addressing Australia’s international obligation, clearer
language is required to ensure our international obligations are complied with
in any authorisation under the proposed Division 3A.
Recommendations
1.13
Insert a clause in Schedule 2 to notify the relevant
State or Territory as to the designation of critical infrastructure as soon as
practicable.
1.14
Insert a clause after 51T2A to explicitly rule out the
use of torture, cruel, inhuman or degrading treatment on a person. Insert a clause to recall Parliament
to debate any expedited call out order as soon as practicable.
1.15
Redraft 51SC to remove the words 'have regard to' and
incorporate the words 'comply with'.
Senator
Andrew Bartlett
Australian Democrats
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